Litigation: Some Key Differences between Civil Litigation in Canada and the United States— Part 5

The last four articles in this series addressed various differences between civil litigation in Canada and in the United States regarding practice, procedure and certain remedies. This article deals with an area of substantive law where there are significant differences between the laws of the two countries: defamation.

Canada’s common law provinces and territories (i.e., all but Quebec) follow the historic legacy of English law on libel and slander. The law of Quebec, which has its foundations in the French civil law tradition, is rather different and will not to be addressed in this article.

Canadian Law of Defamation

A plaintiff in a Canadian defamation action is normally required to prove just three things to obtain an award of damages: (1) that the impugned statement was defamatory, in the sense that the words in issue would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words referred to the plaintiff; and (3) that the words were “published,” meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, both falsity and damage will be presumed. The plaintiff is not required to show that the defendant intended to cause harm to the plaintiff, or even that the defendant was careless. The tort is one of strict liability.

False Statement

Whereas in the United States the plaintiff in a defamation action must prove that the impugned statement was false, in Canada the plaintiff need not do so. A defendant in a Canadian defamation action may defend the action on the basis that the impugned statement was true (the “defence of justification”) but the onus thus is on the defendant and, in addition, a defendant who asserts but fails to prove that a defamatory statement is true will often be subject to an adverse cost award and, potentially, a increased damage award.

Proper Inquiry

In the United States, the plaintiff in a defamation action must prove that the impugned statement was made without appropriate inquiry into the truth of the statement whereas in Canada the plaintiff need not do so. Rather, a defendant in a Canadian defamation action may seek to avail itself of a defence of “responsible communication” based, in part, on having been diligent in trying to verify the truth of the statement in issue.

Proof of Malice

In the United States a plaintiff in a defamation action who is a celebrity or a public official must, in addition to the above two requirements, prove that the impugned statement was made with an intent to cause harm, or with a reckless disregard for its truth (see the 1964 decision in New York Times Co. v. Sullivan). This requirement is often simply termed the obligation to “prove malice.” In contrast, in a Canadian defamation case intent will be presumed. A plaintiff in a Canadian defamation case need not prove that the defendant intended to defame the plaintiff. In 1995 the Supreme Court of Canada confirmed that the American requirement that a plaintiff “prove malice” is not the law of Canada.

Forum Shopping Libel Tourists and Enforcement Issues

Canada, like England, thus may be regarded as rather more “plaintiff friendly” than the United States with regard to the law of defamation. That said, forum shopping “libel tourists” are not (yet?) as common in Canada as they are perceived by some to have become in England.

The SPEECH Act of 2010 signed by President Barack Obama on Aug. 10, 2010 provides some protection from a foreign libel judgment being enforced against a U.S. resident if the statement in issue would not be libellous under American law; however, a Canadian libel judgment could of course be enforced by a plaintiff against a defendant’s assets situated in Canada.

Defenses

The defenses available to a defendant in a defamation action in Canada include the defense of “justification” (i.e., proof of the truth of the impugned statement) and the Supreme Court of Canada has also recently confirmed a defense of “responsible communication.” For a defendant to be protected by the defense of responsible communication: (1) the statement in issue must be on a matter of public interest; and (2) the defendant must show that publication of the statement was “responsible”, in that he/she/it was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

Importantly, a defendant may also rely on the defense of “innocent dissemination” where the defendant: (1) did not know of the statement or its nature; (2) had not had the statement or its nature brought to its attention; and (3) was not negligent in respect of (1) and (2). This defense of innocent dissemination is of critical importance to defendants such as Internet Service Providers who, unlike the United States, are not protected by any statutory immunities to defamation actions.

Conclusions

Freedom of expression is guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The question of principle in Canada, as in the United States, is whether the law of defamation restricts freedom of expression in a fashion which is incompatible with society’s (and the constitution’s) fundamental values. As Justice Binnie of the Supreme Court of Canada wrote in a 2008 decision, “[a]n individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest.”